Many workplaces have policies prohibiting bullying and harassment and providing for a formal complaint and investigation process. In some jurisdictions, for example federally-regulated workplaces, employers are required by statute to protect employees from workplace harassment and to have policies and a complaint and investigation procedure to deal with harassment complaints. These policies and statutory provisions arose from our recognition of the harm that can be caused by bullying and harassment.
The irony is that the formal investigation process into such complaints often results in further harm to the relationship between the complainant and respondent, and perhaps the wider workplace. At the very least, investigations miss opportunities to repair and enhance workplace relationships. We should be concerned given that in many cases the parties to the complaint will continue to work together, and given that their conflict may have had negative effects on the rest of the workplace.
There are at least 5 ways a workplace investigation can be re-designed with a view to restoring and transforming workplace relationships:
- The conduct of the interviews
Certain interview skills can be employed by the investigator to provide the parties to the complaint with the opportunity to develop insight, the willingness to consider the other person’s perspective, and the capacity to work on a solution. Given that these skills, properly employed, are completely non-directive, they also allow for impartial evidence-gathering during the course of the investigation.
- The language used at all stages of the investigation
From the first communication to the complainant and respondent informing of them investigation, through the investigative interviews, and up to and including the report, language should be chosen that has the lowest potential for further harming workplace relationships, and the highest potential for preserving workplace relationships, if that is possible. For example, care should be taken in the investigation report to avoid unnecessarily harsh language, such as labelling the respondent an “harasser,” or one of the parties a “liar”. Respectful language also has the advantage of modelling the type of behaviour that is expected in the workplace.
- The mandate of the investigation
If the investigator employs interview skills and language as referred to above, there is potential for a party to the complaint to express insight and perhaps remorse during the conduct of the investigation. For this approach to be effective, the employer has to see such results as a “win.” That is, the workplace culture has to be such that employees will not feel threatened if they acknowledge some wrongdoing, and that insight and awareness are valued and supported.
- The assessment of credibility and rehabilitative potential
Investigators who understand how people in conflict behave understand that they may need time and/or assistance to move from being defensive, angry, self-centred and suspicious to being insightful and responsive to the other party. The investigator would then approach assessments of credibility and rehabilitative potential with this different lens. A person’s acknowledgement of responsibility during the course of an investigation should be taken as a positive indication of the person’s potential to change and to model appropriate behaviour in the workplace.
- The impartiality of the investigator and fairness of the investigation
These are not new concepts. We know that an impartial and fair investigation is the best way to protect an employer from liability. An impartial and fair investigation also enhances the acceptability of the investigation amongst the workforce. However, impartiality and fairness take on greater significance if the aim of the investigation is to do no further harm, repair and even enhance workplace relationships. People need to feel empowered in order to be responsive to the other person’s perspective. This can only occur if parties feel that the investigator is neutral and the process is fair. A fair and impartial investigation also sets an example of respectful behaviour for the parties and the wider workplace.
*This blog is a summary of a full-length paper entitled “Restoring and Transforming Workplace Relationships Through Workplace Investigations,” written for and presented at the 2016 Conference of the Canadian Association for the Practical Study of Law in Education, in which I rely on the work of Robert Baruch Bush and Joseph Folger in The Promise of Mediation: The Transformative Approach to Conflict (San Francisco: Jossey-Bass, 2005); Jennifer Llewellyn in “Not Just Going ‘Round in Circles: Introducing Restorative Justice in Nova Scotia”, The Society Record, Fall 2015; and Wayne MacKay, Respectful and Responsible Relationships: There’s No App for That, The Report of the Nova Scotia Task Force on Bullying and Cyber Bullying (2012).